The Complainant is Herbalife International Inc. of Los Angeles, California, United States of America (“United States”), represented by Manatt, Phelps & Phillips, LLP, United States.
The Respondent is Nexperian Holding Limited of Hangzhou, Zhejiang, China / Zhang Gui Mei of Nantong, Jiangsu, China. 2. The Domain Name and Registrar
The disputed domain name is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 14, 2017. On November 14, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 15, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 21, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on November 23, 2017.
On November 21, 2017, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On November 23, 2017, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on November 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 18, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 19, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on January 4, 2018. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background A. Complainant
The Complainant is a company incorporated in the United States, and a manufacturer and retailer of dietary supplements, nutritional supplements, and personal care products, marketed and sold under the trade mark HERBALIFE (the “Trade Mark”) since 1980, and in China, since at least 1994.
The Complainant is the owner of numerous registrations in jurisdictions around the world for the Trade Mark, including United States registration No. 1254211, registered since October 18, 1993; and Chinese registration No. 698316, registered since July 21, 1994. B. Respondent
The Respondent is apparently a resident of China. C. The Disputed Domain Name
The disputed domain name was registered on August 8, 2011. D. Use of the Disputed Domain Name
At the time of the filing of the Complaint, the disputed domain name was resolved to a Chinese language website which (1) used the trade marks, logos and trade dress of the Complainant; (2) offered a wide range of what appeared to be the Complainant’s goods under the Trade Mark; (3) falsely claimed to be Herbalife’s official website in China; and (4) contained links to commercial websites offering goods of the Complainant’s competitors (the “Website”).
As at the date of this Decision, the disputed domain name is no longer being used. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainant has requested that the language of the proceeding be English for the following reasons:
(i) The domain name is in Latin script;
(ii) The product labels and product descriptions for the products offered for sale on the website are in the English language contain; and
(ii) Translating the Complaint into English would introduce undue cost and delay.
The Respondent, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding and did not file a response.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
The Panel considers that the offer for sale on the Website of a large range of products with detailed English language packaging, instructions and ingredients listings indicates that the Respondent is likely conversant in English. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2. Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) together with the non-distinctive word “china”.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) The respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name was previously resolved to the Website, which masqueraded as the official website of the Complainant in China, and provided links to websites offering for sale products of the Complainant’s competitors.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
In light of the manner of use by the Respondent of the Website described above, the Panel finds the requisite element of bad faith has been satisfied under paragraph 4(b)(iv) of the Policy.
At some stage following the commencement and notification of this proceeding, the Respondent has caused the Website to be taken down. The Panel finds that such conduct amounts to further grounds in support of a finding of bad faith.
For the foregoing reasons, the Panel finds that the disputed domain name has been registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: January 18, 2018
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